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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Prebon Marshall Yamane (UK) Ltd v Rose [2002] UKEAT 1000_02_0312 (3 December 2002) URL: https://www.bailii.org/uk/cases/UKEAT/2002/1000_02_0312.html Cite as: [2002] UKEAT 1000_02_0312, [2002] UKEAT 1000_2_312 |
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At the Tribunal | |
Before
HIS HONOUR JUDGE J McMULLEN QC
DR D GRIEVES CBE
MR D J JENKINS MBE
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
PRELIMINARY HEARING
For the Appellant | MR DAVID READE (of Counsel) Instructed By: Messrs Herbert Smith Solicitors Exchange House Primrose Street London EC2A 2HS |
JUDGE J McMULLEN QC:
The proceedings
Background facts
The substantive appeal
1. Inconsistency in the defence to equal pay
2. Multiple claims in equal pay
"The Applicant's case was therefore inherently inconsistent in that she sought modification to two different sets of contractual terms. Despite an invitation to do so, in the Respondent's closing submissions, the Applicant failed to clarify her position and continue to maintain these inconsistent cases."
3. Sex discrimination and EAT procedure
"If an application for permission to appeal on the ground of lack of reasons is made to the appellate court and it appears to the appellate court that the application is well founded, it should consider adjourning the application and remitting the case to the trial judge with an invitation to provide additional reasons for his decision or where appropriate his reasons for a specific finding or findings."
In Tran the Court was not referred to an earlier decision of the Employment Appeal Tribunal Yusuf v Aberface [1984] ICR 850 a judgment of the EAT. In that case Nolan J indicated that a Tribunal which had not made a decision or which had not given proper reasons for its decision had not discharged its statutory function and until it did. At a full hearing it could be asked to continue to deliberate and that is what occurred. He said
"… the procedure of calling upon an Industrial Tribunal to amplify findings and reasons which were incomplete or obscure is not often used because it is not often required but there is ample precedence for its use in decisions both of the Appeal Tribunal and of the National Industrial Relations Court [cites authorities]. Secondly, by virtue of the then procedure regulations the Industrial Tribunal must give the reasons for their decision. As has been made clear by the Court of Appeal in Union of Construction, Allied Trades and Technicians v Brain [1981] ICR 542, the purpose of giving reasons is "to tell the parties in broad terms why they lose, or as the case may be, win". Unless and until reasons are given with sufficient clarity to fulfil that purpose there can be no question of the Industrial Tribunal being functus officio…."
The EAT went on to apply a judgment of Eveleigh LJ in Varndell v Kearney & Trecker Marwin [1983] ICR 683, 685, with whom Griffiths and Dillon LJJ agreed, that remission to an Employment Tribunal in such a case is the "obvious course" to take. In both those cases there was a full hearing, but it seems to us the principle of remission was applied in a general way.
"… in my respectful opinion an appeal to the appeal tribunal should be decided upon the industrial tribunal's reasons as originally drafted, and I deprecate any procedure whereby these may be supported or enlarged by and direct communication between the industrial tribunal on the one hand and the appeal tribunal on the other."
That conclusion started with a contention of the Applicant Ms Leverton that there was no evidence to justify a finding by the Employment Tribunal that there was a genuine material difference between her case and her comparator's. The EAT entered into correspondence with the Employment Tribunal Chairman who also produced a selected extract from his notes of evidence. Having looked at this material, the EAT upheld the Applicant's contention: see [1987] ICR 158, judgment of French J, Mr GH Wright and Mr JA Powell given by the latter. That finding was overturned by the Court of Appeal with whom the House of Lords agreed. So the finding by the Employment Tribunal was restored. The "remission" point was referred to only by May LJ.
4. The sex discrimination appeal
"The distribution of the bonus pool is clouded in uncertainty. There appears to have been no method whatsoever about it. The distribution was at the total discretion of the manager of the Desk, and that discretion appears to have been exercised arbitrarily. The evidence given by Mr Bright as to the difference in the levels of bonus was largely subjective, and unsupported by hard evidence. We therefore consider ourselves entitled to draw the inference that the difference in the bonus payments was caused by the sex of the Applicant, and so do. We therefore find that the Applicant succeeds in respect of this part of her claim."
Directions